December 2006
The Mother of All Battles
(Sparring with Medicare with Your Mother in the Corner)
by Steven A. Reisler
There are rites of passage in American culture: your first kiss, your first beer, and your first invitation to join the American Association of Retired Persons the moment that you turn 50. A mere decade or so after being recruited by the AARP, you will be introduced to the delights of Medicare, that peculiarly American miasma of administrative rules, procedural spaghetti, and briar patch of politicized healthcare.
Unlike in many modern countries where socialized medical care is a government-subsidized public right, U.S. citizens tend to think of healthcare in terms of private “insurance” — either as an emolument of employment or, to the millions of part-timers or unemployed, as an unaffordable luxury. But even for those “employed” who have medical insurance, at that precise moment when advancing age strikes you from the paycheck rolls, enfeebles your body and your brain, and tosses you into the loving hands of the big pharmaceutical companies, precisely then are you faced with the task of comprehending what the Congress and the United States Administrative Code have wrought for medical care for our senior citizens.
Like most Americans, I learned about Medicare not from the law books, but from trying to decipher it in the context of my own parents; in this instance, in the case of my octogenarian mother.
My mother is a product of New York’s Lower East Side. For those of you who are not familiar with The City of the 1920s, ‘30s and ‘40s, think of a time when both the Dodgers and the Giants were cross-town baseball rivals. Think also of growing up poor in brownstone tenements, congested and noisy streets, sleeping on fire escapes in your underwear during the summer, broken-bottle gang fights, vegetable carts, fishmongers, and blue-collar working-class immigrants. My mother learned how to scrape and scrabble, how to look out for herself, and how to survive in a mean world. This is a woman who, while a resident in a retirement home in her late 80s, was nearly written up for “conduct unbecoming a senior citizen” after she refused to follow residential “rules” of order that were more ritualistic than meaningful. I refer, of course, to a certain toughness of mind and spirit, though definitely not a toughness of body. Thus in January 2006, when my 88-year-old mother landed in a local hospital for one of her quarter-annual medical emergencies — this time a severe corneal ulceration and infection — she was eventually discharged to a Skilled Nursing Facility (SNF, euphoniously referred to as a “sniff”) to undergo rehabilitation for her eventual return to her own apartment and independent living.
Once, I imagined that all parents aged like characters in Norman Rockwell paintings. You know, old men become tri-spectacled, flannel-shirted dispensers of patient wisdom and women became plump and aproned cookie-bakers with a perma-smile and dimpled cheeks. So much for popular mythology. While some people’s parents might grow into senior-citizen Madison Avenue archetypes, my long-widowed mother evolved into an anxious, memory-challenged, web-surfing health neurotic who would no more bake cookies than eat anything that contained nuts, egg yolks, salt, sugar, chocolate, seeds, caffeine, fruit skin, tomatoes, yeast, fat, oil, flavor, or anything else that makes eating tasty and meaningful. Now when you compound this idiosyncratic personality with a serious infection (infections often cause confusion in the elderly), the irrational peculiarities of senior mentation, and the physical disabilities of old age, you have a patient who can be very interesting for the staff of a skilled rehabilitation facility trying to do their best. So while some senior citizens might go gently into that nursing home good night, my mother would go kicking and screaming. This makes life rather difficult for the cadre of limited nurse practitioners, social workers, and therapists, who prefer a more compliant clientele who take their meds and sedatives on schedule, blankly watch television, or sleep the days away. All of which should have warned me that something was not all right when, only a few days after admission, I, as my mother’s nearest kin with power of attorney, was urgently requested to sign a discharge notice agreeing that my mother no longer needed skilled nursing care, could be discharged imminently to care for herself, and that any nursing care provided after date X would be charged to her personally.
A word about how Medicare pays for benefits. Seniors pay premiums for the type of healthcare benefits they want to have, usually described as an alphabet soup of Plan A, B, C, and so forth. Some plans provide only the barest levels of coverage. Other levels of benefits are layered on successively — for an additional premium, of course — and private “supplemental insurance” is also available (also for a price). One wonders, of course, how retired seniors are supposed to pay for this “medical insurance” and how they are supposed to make knowing decisions about which plans to purchase at the time they become “senior citizens,” but that is a discourse for another day.
Medicare, in turn, employs a private company to scrutinize the bills of medical providers, matching services with codes and scouting for signs of over-billing or over-treating. Once a provider’s invoice is approved, Medicare then pays, but at a significantly reduced payment schedule, roughly equatable to a law firm’s senior partners handling a complex matter and then having the bill paid at paralegal rates which are then whacked by an additional 40 percent. Needless to say, this leaves medical providers rather unhappy, and were it not for the volume provided by Medicare, most would not bother at all.
I do not know, but only suspect that Medicare’s stinginess discourages not only excessive medical care but, in some instances, appropriate medical care as well. Notwithstanding the Hippocratic Oath, logically, there must be a limit to which treaters are willing to handle difficult and protracted cases without adequate compensation. That limit, faced with the unique charm of my octogenarian mother enhanced by a personality-distorting infection, probably affected the decision to either push my mother out of the skilled nursing facility or to make her pay full freight for their troubles.
Despite their intention to discharge her, my mother was definitely not ready again for independent living, as was clear from her deteriorating mental condition, her obstinate refusal and inability to perform a Mini Mental State Examination (MMSE), and her physical inability to even locate her eyeballs to administer her own eye drops. Thus, subsequent to the proposed date of discharge, further medical examination determined the obvious: her infection was worse, spreading to other parts of her body and weakening her overall physical and mental capabilities. The resident doctor refused to discharge my mother until she could demonstrate adequate mental faculties, and the ophthalmologist determined that my mother must remain at the skilled nursing center for several more weeks. Unfortunately, as would later prove to be significant, a few of these doctors’ orders were communicated only informally and not always in writing.
During her sojourn at the nursing center, doctors wrote numerous orders certifying her needs for skilled nursing care and therapy lasting at least 30 days, the need for gait training and bed mobility therapy, and in-patient treatment based on the fact that it was “impossible to care for herself.” Various nursing and therapy notes confirmed the existence of “significant cognitive impairments” resulting from the intensifying infection, and reflected the reality that my mother was not a candidate for return to independent living. Treatment, therapy, and additional antibiotic medications were prescribed and administered for several weeks until, finally, the corneal ulcerations abated, the mental impairments disappeared, and my mother was discharged to her own residence at her baseline health and inimitable self.
So far, so good. Medical mission accomplished. But then came the bill.
Medicare had refused to pay for the skilled nursing treatment. My mother was presented with a personal bill for approximately $4,000 because (a) her son had early on “consented” to her discharge and (b) the services she had received were not “skilled” and could have been provided by herself. It was deemed not significant that my mother had actually deteriorated since the date of the originally intended discharge. It was also irrelevant what the doctors might have said before or subsequent to the signed discharge notice about keeping her in the skilled nursing center because, Medicare’s representatives contended, the services provided were not actually “skilled.”
My mother was not amused to receive the bill, and I shared my mother’s lack of amusement. “You’re a lawyer,” she yammered at me, “so do something!” Having been thus formally retained (pro bono, of course) to challenge the Medicare decision, I set out on a (for me) never-before-attempted administrative challenge to Medicare at some risk of filial malpractice.
What I quickly discovered is that Medicare uses a host of private “out-sourced” insurance adjusting companies to handle all challenges, evaluate them, and buck them up the line. In my mother’s case, my succession of cajolements, requests, and challenges to Medicare’s decision not to pay were rapidly assessed, analyzed, and firmly rejected. The process bounced from one state to another in a matter of days and weeks, each reviewing entity parroting the findings of the other and blessing the initial decision with a host of “independent” reviewers and authorities: Medicare would pay nothing and the bill was entirely the responsibility of the senior citizen, otherwise known as my mother.
Having struck out at the adjuster level and worked through my so-called “administrative remedies,” I eventually sought relief before someone with whom I thought I could better communicate: a fellow lawyer, someone who, at least, could read and understand the law — a federal administrative law judge (ALJ).
Prior to submitting a written petition, I endeavored to crack the code ... nothing so subtle as the DaVinci Code, but equally daunting: the Code of Federal Regulations.
There are lengthy provisions of the CFR dedicated to Medicare. Specifically, as I discovered, 42 CFR 409 and various subsections define the requirements for coverage of post-hospital skilled nursing care and the level of care required. As with most of the Code of Federal Regulation, the scheme consists of a general set of policies and guidelines followed by a subset of exceptions to the rules and, sometimes, specific examples of these exceptions. Although there are some federal case decisions reported in the “Fed Supps” and the “FRDs,” only a few were on point. Most of the case law only confirmed that the courts generally would defer to Medicare and to the administrative law judges charged with handling those cases that were coughed up by the system. The key to the appeal, therefore, was the Code itself and the specific exceptions delineated in 42 CFR 409.32 et. seq. Thus, in the briefing I provided to the ALJ, the logic of the Code was neatly presented in the context of my mother’s case.
Although the administration of “eye drops” was not, in itself, a instance of skilled nursing, “a service that is usually not skilled... may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel.” (42 CFR 409.32(b)) (emphasis added). Furthermore, “if the patient’s overall condition supports a finding that recovery and safety can be ensured only if the total care is planned, managed, and evaluated by technical or professional personnel, it is appropriate to infer that skilled services are being provided.” (42 CFR 409.33 subpart ii) (emphasis added). In the factual context of what had happened in my mother’s case, I argued, that was precisely the situation: Regardless of how “skilled” the discrete medical services had been, they were necessarily “skilled” because, under the circumstances, they had to be provided in a skilled and supervised environment.
From a factual perspective, I also questioned how the patient could have been discharged to take care of herself when the resident physician would not discharge the patient at all unless and until she could take and pass an MMSE (which, at the time, she could not do). Catch-22, I argued: How can you go home to take care of yourself if they will not let you even go home?
The hearing in this matter was conducted by video-teleconference using a three-way hook-up. I padded down to my local Kinko’s early one morning and through wideband Internet connections, I appeared before the federal administrative law court in California to present my arguments on behalf of my (now 89-year-old!) mother.
The response of Medicare’s agents was a straightforward regurgitation of the agency’s original position, plus the novel assertion that no weight should be attributed to the resident doctor’s absolute refusal to discharge my mother until and unless she completed a satisfactory MMSE. According to the responding agency, hospitals and nursing facilities administer MMSEs to their patients not to actually assess their mental faculties, but to protect the institutions themselves from suits for medical negligence. Thus, argued Medicare’s representatives, the failure to give my mother an MMSE as a prerequisite to discharge was merely the agency’s failure to protect itself from a possible lawsuit. Needless to say, this was an eyebrow-raising argument, though hardly one that warranted a response.
Several weeks after oral argument, the administrative law judge rendered his written decision: It was a clean, sweeping, and decisive TKO for Justice and for Mamma. The administrative law judge ruled that the CFRs provided specific legal guidance for the provision of the subject medical care and that it was “an untenable position” that certain technical deficiencies in the record should “trump the evidence” that the patient had, indeed, received necessary and appropriate skilled nursing care. Medicare was ordered to pay the $4,000 SNF bill in full. Although there were still two more administrative levels of review that Medicare could have pursued, it gamely threw in the towel at this point and paid the service provider.
So ends the story. But this is not the end of the story. Warning: For those of you who are solely interested in the procedural and legal aspects of this anecdote, please read no further. For what follows is a comment that, some might argue, does not belong in a column posing as professional. To these critics I say: Just stop reading, or go write your own opinion column.
In sum, my legal foray into administrative Medicare law was a success. The administrative law judge did the right thing. Heart and mind prevailed over the tyranny of procedural word processing. The system worked. This time.
But the system, overall, does not work. The system is positively awful.
The reality is that the only reason why my mother could contest a $4,000 medical bill is because her son is a lawyer and a 26-year veteran of the Bar. I cannot imagine how many times it must happen that a senior citizen of the United States finds him- or herself in a similar situation and does not have a relative at the bar ready or willing to tilt at an agency of the federal government. How many elderly people in this country have benefits denied, care deprived, or their health or meager assets put in jeopardy simply because they are either too feeble to know what to do or do not have the money to defend their rights by hiring an attorney?
Of course, you do not need to hire a lawyer to process your rights and challenge Medicare. The “system” is set up so that laypersons can represent themselves at little or no expense. Sure. The problem is that the elderly are a particularly vulnerable class, and they are particularly in need of legal assistance when they are least able — physically, financially, and mentally — to deal with what even this experienced attorney found to be a complicated experience that involved a fair amount of time, study, research, and analysis.
The additional reality is that the amount of money involved in this particular challenge — and perhaps the majority of denials of coverage by Medicare — makes it hardly worthwhile for a lawyer to undertake the charge. In short, I could make this effort gratis on behalf of my own mother, but give me a steady diet of these types of cases and I would starve to death. And, although there are social-service agencies and public-service law firms available to help, they are all under severe financial stress themselves and hardly able to render the kind of legal attention to matters that might seem relatively small to some, but immense to the senior citizen whose life savings may be at stake.
My mother, like her contemporaries, is a product of the Great Depression and has lived through the world wars that have engulfed humanity since 1914. They have worked, raised families, paid taxes, and paid homage to the usual patriotic mythology, and now, in the autumn of their lives, they have discovered that they have to fight, precisely when they have the least fight left in them, to preserve that which they had earned as a penultimate benefit of citizenship: medical care in their waning years.
The solution is not to further cheapen the benefits of Medicare. The solution is not to further screw down the allowances paid to medical providers. The solution is not to further privatize or outsource the administration of a public service, nor to tweak the administrative procedures. The solution is to abandon a purely market-based mode of thinking that imposes on the weak, the sick, the poor, and the vulnerable the need to justify their own existence and their natural rights. It is not civilized that budgets should be balanced at the expense of those least able to defend their rights. The solution is to allocate funds properly, so that money that ought to be provided for necessary public services is provided for necessary public services. The solution is to change the system for the better and to adjust our priorities.
I rest my mother’s case.
Steven Reisler practices civil and commercial law at his micro-mini-boutique in northeast Seattle. He is a past member of the WSBA Board of Governors, past chair of the Washington State Commission on Judicial Conduct, and edited Bar News from 1980 to 1985.
